singular but logical, that an employe may, in certain instances occupy a dual position, that of co-servant as to all matters within the scope of the employment and the discharge of such duties as are not personal to, or absolute upon, the master, and as agent of the master as to all matters where he is charged with the discharge of duties which the master himself should have discharged, or which rest upon the master as absolute duties. This principle has been recognized in a number of cases and applied under many varieties of facts.1 In a case decided by the New York Court of Appeals the plaintiff was an employe in defendant's iron works, which were under the management and control of defendant's agent B., the defendant living elsewhere and only occasionally visiting the works. B. carelessly let steam on an engine near which plaintiff was working, whereby the plaintiff was injured. In an action for that injury the Court charged that B. represented the defendant only in respect to the duties confided to him as managing agent, but refused to charge that as to other duties he was to be regarded as a fellow-servant, with the plaintiff, and left it as a question of fact. The Court held that such refusal was error.

1. Quinn v. New Jersey Lighterage Co., 23 Fed. Rep. 363; Brick v. Rochester, etc., R. Co., 98 N. Y. 211; Indiana Car Co. v. Parker, 100 Ind. 181; Engine Works v. Randall, 100 Ind. 293; Moore v. Wabash, etc., R. Co., 85 Mo. 588; Hussey v. Coger (N. Y. 1889), 20 N. East. Rep. 556; Crispin v. Babbitt, 81 N. Y. 516; Loughlin v. State, 105 N. Y. 159; Berea Stone Co. v. Craft, 31 Ohio St. 287; St. Louis, etc., R. Co. v. Welch (Tex.), 10 S. W. Rep. 529; Couch v. Charlotte, etc., R. Co., 22 S. Car 557; s. c., 28 Am. & Eng. R. R. Cas. 331; Green, J., in Criswell

v. Pittsburg, etc., R. Co. (W. Va.), 33 Am. & Eng. R. R. Cas. 242, said: "I think the better considered views of recent American cases is, that if a master delegates to a superintendent the performance of certain duties, to the extent of the discharge of those duties, he stands in the place of the master; but, as to all other matters, he is a mere coservant." Compare Hardy v. Minneapolis, etc., R. Co., 36 Fed. Rep. 657.

2. Crispin v. Babbitt, 81 N. Y 516; s. c., 37 Am. Rep. 521, Earl, J., dissenting.

CHAPTER IV.

THE SUPERIOR SERVANT LIMITATION.

43. The Superior Servant Limitation.

44. Origin of the Limitation-Ohio Cases.

45. Rule in Kentucky.

46. The Rule in Other States.

47. Alabama.

48. Connecticut.

49. Georgia.

50. Illinois.

51. Indiana.

52. Iowa.

53. Kansas.

54. Maryland.

55. Michigan.

56. Missouri.

57. Nebraska.

58. New York.

59. North Carolina.

60. Pennsylvania.

61. Rhode Island.

62. South Carolina.

63. Tennessee.

64. Texas.

65. Vermont.

66. Virginia.

67. West Virginia.

68. Wisconsin.

69. United States Supreme Court-Chicago, Milwaukee, & St. P. R. Co. v. Ross.

70. General Remarks-Application of the Limitation.

71. Stipulation by Master for Exemption from Liability for

Torts of Superior Servant.

$43. The Superior Servant Limitation.

ence.

In a number of jurisdictions in this country, some of them having courts of great learning, there is a distinction in their relation to their common employer, between servants exercising no supervision over others engaged with them in the same employment, and those who are clothed with the control and management of a distinct department. in which their duty is that of direction and superintendSuch employes, while acting in that position, are held to be representatives of the master and not fellowservants within the meaning of the rule. This limitation is based upon the theory of the presumed presence of the principal in reference to the acts of servants or agents. But, as we shall see hereafter, it ignores entirely the true criterion of fellow-service. It deals altogether with station or position which the two employes occupy, and overlooks the character of the act out of the negligent performance or the nonperformance of which the injury arose.

The doctrine has been stated as follows: "Where the negligent servant is, in his grade of employment, superior to the injured servant, or where one servant is placed by the employer in a position of subordination, and subject to the orders and control of another, in such a way and to such an extent that the servant so placed in control may reasonably be regarded as representing the master, as his alter ego or vice principal, when such inferior servant, without fault, and while in the discharge of his duty, is injured by the negligence of the superior servant, the master is liable in damages for the injury." This idea that the master is responsible to inferior servants for the acts of superiors has produced endless confusions in the decisions. In general it is favored by text writers and adopted by the southern and western courts, and by the United States Supreme Court? On the other hand the entire doctrine 2. Chicago, M. & St. P. R. Co. v.

1. Beach, Contrib. Neg. § 110.

of the liability of the master for a superior's tort to an inferior, is unequivocally repudiated by courts whose number and authority (saving the United States Supreme Court) outweighs that of those favoring the doctrine.1

$44. Origin of the Limitation.—Ohio Cases.—

This limitation was directly forecast by Judge Shaw in his opinion in the Farwell case,1 when he said: "To say that the master shall be responsible because the damage is caused by his agents, is assuming the very point which remains to be proved. They are his agents to some extent, and for some purposes, but whether he is responsible in a particular case, for their negligence, is not decided by the single fact that they are, for some purposes, his agents." It was also directly pressed upon the Court in the early South Carolina case2 where an engineer and a fireman were held to be fellow-servants. Judge Evans disposed of the question in the following language: "The engineer no more represents the company than the plaintiff. Each in his several department represents his principal. The regular movement of the train of cars to its destination is the result of the ordinary performance, by each, of his several duties. If the fireman neglects his part, the engine stands still for want of steam; if the engineer neglects his, everything runs to riot and disaster. It seems to me, it is, on the part of the several agents, a joint undertaking, where each one stipulates for the performance of his several part. They are not liable to the company for the conduct of each other, nor is the company liable to one for the misconduct of another." It is clearly seen from these extracts that the doctrine was not countenanced by either of the two cases to which we are indebted for the introduc

v. Winona & St. P. R. Co., 27 Minn. 162; s. c. 38 Am. Rep. 285; Murphy V. Smith, 19 C. B. N. S. 361; Collier v. Steinhart, 51 Cal. 116; McLean v. Blue Point Min. Gravel Co., 51 Cal. 255; Gulf. etc., R. Co. v. Blohn (Tex. 1889), 11 S. W. Rep. 867; Howells v. Landore Seimens Steel Co., L. R. IO Q. B. 62; Allen v. New Gas Co., 1 Exch. Div. 254; Feltham v. Eng

land, L. R. 2 Q. B. 33, reversing s. c. 4 Fost. & Fin. 460; Wilson v. Merry, L. R. 1 H. L. Sc. App. 326. In Zeigler v. Day, 123 Mass. 152, a superintendent, receiving a portion of the profits for his services, was held to be a fellow-servant with a laborer. 1. 4 Metc (Mass.) 49.

2. Murray v. South Carolina R. Co., 1 McMullan (S. Car.) 385.